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Friday, October 7, 2011

Child Protective Services

Child Protective Services Victories for Parents’ Rights May Help in Dealing with CPS Two recent court cases affirmed the 4th amendment right of the family to protection from unreasonable searches and seizures by Child Protective Services.

In both cases, the U. S. Ninth Circuit Court of Appeals found that Child Protective Services’ entry into a home and forced strip searches of children when there is no emergency or without a warrant are violations of the parents’ 4th amendment rights.

The first case, Calabretta v. Floyd, involved a Yolo County CPS worker who, accompanied by a police officer, forced entry into the Calabretta home without a warrant and demanded a strip search of their 3 year old daughter.

The Calabretta v. Floyd decision has been published. It might be wise to print this decision, read and familiarize yourself with it, and keep a copy handy in your home—possibly near the front door along with your tape recorder that is always supplied with fresh tape and batteries.

Calabretta v. Floyd HSLDA Press Release August 26, 1999

Yolo County, CA—Social workers are bound to obey the U.S. Constitution when investigating child abuse cases, said a unanimous three-judge panel of the Ninth Circuit U.S. Court of Appeals in an opinion handed down Thursday, August 26, 1999.

“This opinion will have a nationwide impact. With respect to the Fourth Amendment, the Ninth Circuit settled the social worker question once and for all. No longer can social workers enter a home without either a warrant or probable cause of an emergency,” said Michael Farris, lead attorney for the plaintiffs.

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In the second case, according to the LA Times account, Escondido CPS with the help of local police seized two children from a home in the middle of the night and without a warrant. The seizure was based on a tip from a family member. Three days later, CPS had the children examined at a hospital without their parents present, and despite finding no evidence of abuse, kept the children for a total of 2 1/2 months. Upon the children’s return, the family was billed for foster care.

With this decision, the Ninth Circuit opened the way for the family to sue for “damages on the allegations of civil rights violations, abduction of the children and infliction of emotional distress.”

“In particular, the court said a jury should decide whether the city of Escondido had a policy of picking up children without verifying the existence of a court order and without reasonable cause.”

LA Times Article on Escondido Case September 15, 1999, page A3

Parents’ Rights Upheld in Child Abuse Inquiries;

Justices rule that authorities searching for evidence must get family consent or a judge’s order before an invasive examination of a minor.

A federal appeals court in San Francisco ruled Tuesday that government officials investigating possible child abuse cannot conduct an invasive bodily search of a child without parental permission unless a judge has ruled in advance that such a search is warranted.

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The following article was printed in the December 1997-January 1998 issue of CHNews.

Janet, a devoted homeschooler, never thought she had very much to worry about. After all, she always thought of herself to be an above-average mother. She spent lots of time with her children and filed her private school affidavit as required by state law. Unfortunately, Janet was completely unaware of the growing threat to her family autonomy. It struck suddenly.

She received a call from Child Protective Services, who asked for an appointment to visit her and her children. It was to be a visit solely to follow up on a phone call they had received from a concerned neighbor. It would only take a few minutes.

Janet agreed to let CPS come to her home a couple days later to ask some questions of her. There was little hesitancy because, after all, she was a good mother and had nothing to worry about. Later that week CPS showed up with two law enforcement officers. They had a warrant to enter the premises and take her three children for some questioning. Janet was not told where they were taken nor when she would see her children again. Sound absurd?

Unfortunately, Janet is by no means alone. CPS in California has greatly increased the number of cases they are handling. And as Janet soon discovered, homeschoolers are by no means exempt. In fact, as homeschooling becomes more and more widespread, cases like Janet’s will likely only increase.

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So what should a homeschooling parent do when placed in a situation like Janet’s? First, we at Pacific Justice Institute recommend that the parent contact either our organization or a private attorney to provide them immediate legal counsel. Second, Pacific Justice Institute has discovered the following method for homeschoolers which, however cumbersome, almost always effectively circumvents the above tragedy from occurring.

Assuming CPS calls beforehand to set up an appointment, the parent should not lose their friendly demeanor or sound defensive. Parents need to ask why CPS feels the need to visit with them or their children, and then the parent should make sure that they have plenty of time to take their children for a private medical exam beforehand. Parents must not simply hang-up or refuse to cooperate. CPS only needs a “reasonable suspicion” of child abuse (physical or emotional) to temporarily seize children. Consequently, the goal is to negate that reasonable suspicion before CPS has an opportunity to either visit with or take the children. But how?

The parent should immediately have their child physically examined by a private, non-CPS affiliated, physician. The physician should be very thorough in his or her exam so that he or she can immediately write a letter stating that no bruises, marks, or health concerns were found on the child that in any way would create any suspicion of child abuse or neglect. (If it is at all possible in the parent’s mind that emotional abuse may be alleged, then the parent should have the child questioned by a child psychiatrist and have a similar report prepared immediately.)

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After the parent receives these written reports, the parent should send copies via certified mail to the CPS worker handling the case, as well as to the CPS worker’s supervisor. To make sure that the CPS worker and supervisor receive these reports on time, the parent might want to personally (and in a friendly, helpful manner) deliver these reports to them instead.

The parent should then follow-up with a phone call to make sure that the reports satisfied the CPS worker’s concerns and that the earlier scheduled meeting with the parent and children was, in fact, no longer necessary. Nine times out of 10, that will be the case.

However, in those rare occurrences when it is not the case, the parent should immediately call competent legal counsel to intervene further on their behalf.

The parent also should not hesitate to further question the CPS worker to find out specifically what concerns he or she still had outstanding that were not already covered by the report. You may find that the CPS worker simply wants a second opinion or may have mistakenly lost or forgotten about the reports that were sent. Please note that CPS workers in Sacramento County handle an average of 400 case files.

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If the CPS worker continues to insist on examining the children, or even takes the children, the parent can be assured they probably have developed the proper evidence needed to get their children back in a timely fashion. The parent also has laid the groundwork for a possible civil suit against CPS if it can be shown that the CPS worker maliciously withheld the medical or psychological reports from the judge who signed the order allowing CPS to take the children.

Often, after the CPS worker has taken the children, they may offer to give back the children contingent upon parents signing an admission of neglect, waiver of a right to trial, and/or pledge to undergo CPS supervised “parental training”. All parents should seek competent legal counsel before signing such a document.

Fortunately, over the last five years of coordinating the representation of parents confronted by CPS, there was not a single time when the CPS worker was successful in removing children from their parents when the parents followed the above preventative measures.

Without a doubt, no homeschooling parent can be completely sure that they will never be confronted by CPS. However, there is no reason why non-abusive, non-neglecting parents should ever have to unnecessarily have their family endure the severe trauma resulting from such confrontations.

If you would like more information about how Pacific Justice Institute intervenes and represents homeschooling parents, without charge, please feel free to contact us at (916) 857-6900 or via our web page at www.pacificjustice.org.

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Links for additional information on CPS: NOTE: The links on this page are provided for information only. CHN does not endorse these organizations and their views do not necessarily represent the views of CHN, its Board of Trustees or its membership and should not be considered legal advice.

American Family Rights Association AFRA is a national directory of existing groups and individuals who are working on issues concerning the rights of families, parents, and children.

Child Protection Reform Excellent site with important advice, links to research and parents’ advocacy organizations.

Fight CPS and WIN “This website exists to address the needs of families who are having legal problems with the child welfare services industry due to unjust or false accusations, misrepresentations, mistakes of fact, or exaggerations of circumstance.”